A Government of Men and Not of Laws

Perhaps the primary goal of our Founding Fathers in drafting the Constitution of the United States of America was to limit the powers of individual government leaders and, in particular, the head of state.   The Founders had struggled against King George II for years, enduring his long idiosyncratic rule of the colonies from afar.   And so, as we know, they created three separate but theoretically equal branches of government:   legislative, executive and judicial.   Our democracy was not designed to run smoothly.    It was designed to include "checks and balances" against the arbitrary actions of government officials in the various branches.   This basic concept has been expressed over the years as having "a government of laws and not of men."   Following this idea, the Constitution delegated the power to declare war to the Congress.  

Many commentators have noted the increasing power of the Office of the Presidency in recent decades.   Since World War II, we have been involved in repeated foreign wars of choice, first to fight the spread of Communism and of late to fight the threat of terrorism.   Under the Constitution, the power to declare war is of course reserved to the Congress.   However, in recent foreign wars, Congress has in effect abdicated its Constitutional responsibilities in favor of delegating the decision to go to war to the President.   The Korean War, as many older folk will remember, was euphemistically referred to as  "Police Action," no doubt in part to avoid the issue of the need for Congressional authority to officially declare "war."  

In late 2002, Congress in effect authorized then President George W. Bush to use his own personal discretion as to whether to invade Iraq.   Even a majority of Democratic Senators and Congressmen were willing to cede this awesome amount of authority to one man, George W. Bush, apparently in large part because individual Congressmen and Senators did not want to get caught "on the wrong side of history."   (See, Senator Dale Bumpers, D. Arkansas, who lost his Senate seat in Arkansas after his nay vote  in a Senate vote to authorize President George H. W. Bush to determine the scope of military operations in Kuwait in what became known as Operation Desert Storm).    So, essentially, all the rest of the 300 million of us Americans could have foreseen that the invasion of Iraq was an insane, unnecessary and totally unjustified folly, but one person, one human being, one Homo Sapien--George Walker Bush--could simply decide to ignore all the rest of us and plunge us into  a bloody and costly war, the purpose of which has not really been explained to this day.   This is clearly not what was intended by the Founders in the Constitution.    In retrospect, at least with regard to the unnecessary, misbegotten war in Iraq, the wisdom of the Founders seems pretty sound.

With the assassination of the two Al-Qaida operatives in Yemen this week, we learn that they were killed by an American missile fired from a drone airplane that was an asset of the C.I.A.   According to reports, President Bush gave the C.I.A. the additional authority to kill "terrorists" early in the "War on Terror."   This policy is known as "targeted killings."   This dubious policy, disappointingly, has been continued by President Barack Obama.   President Obama has reportedly promulgated a hit list of "terrorists" who apparently may be killed on sight by the C.I.A.   Of note, this weeks' terrorists were still American citizens, albeit sworn enemies of the United States.   George Washington University law professor Professor Jonathan Turley, in my judgment a reliably reasonable and thoughtful commentator, has written an article published on today's USA Today editorial page that clearly explains why the extrajudicial killing of an American citizen under the authority of the President is inconsistent with our Constitution and our American traditions.    Professor Turley's column is well worth reading.     Professor Turley writes that "[n]o republic can long stand if a president retains the unilateral authority to kill citizens whom he deems a danger to the country."

Although not many tears will be shed for these two particular miscreants, the broader precedent involved should be concerning to all Americans.   President Bush claimed the authority to jail American citizens without due process of law if he classified them as "terrorists."   There was no judicial review of this basic decision.   Once classified as a "terrorist," then, basically, anything went.   Anyone classified as "terrorist" was deemed by the Bush administration to have no civil rights whatsoever.    Similarly, if President Obama sees fit in his sole discretion to characterize an American citizen--or anybody else--as a "terrorist," then that individual has no rights whatsoever and may be killed on sight by the C.I.A. or the United States military.   Apparently, one of the assassinated terrorist's family earlier went to court to try to have his name removed from the kill-on-sight list.   They wanted to know the criteria for being put on the list, the level of proof necessary for the criteria to be met, and the process of how the list was developed.   In other words, they asked to see the established standard being used to assign their son to the kill-on-sight list.   Laws require concrete standards.   Arbitrary actions do not.   

The Obama Administration took the position in the al-Awalaki family's lawsuit that there was no right to judicial review of this kill list and the court agreed and dismissed the case.   The Obama Administration argued that the young man himself should come to the courthouse and file his own action, that the family had no legal standing to litigate the question.   Of course, if he had come to the courthouse, he could have been killed on sight.   The ultimate Catch 22.  Once again, a government of laws starts to become a government of men.   In fact, a government of one man.   The President apparently now has the legal authority to put anybody he chooses on the kill-on-sight list.   Should the President of the United States in effect have the power of life and death over an American citizen?    The response from the White House, according to Professor Turley, is that Americans "have to trust the President."  

President Obama's decisions may have been reasonably justifiable so far, but what if some future and less particular Chief Executive decides, for instance, to put smart ass bloggers on the kill-on-sight list.   Could he or she decide that some future blog post or other is "materially supportive" of terrorism in some abstract way?   Could a blog post that is critical of the administration in Washington be construed as "encouraging" to some terrorist or other?   Or undermining the morale of our troops?   Per the current state of the law, a target of such a charge would have no right or opportunity to defend himself.   You just can't get more un-American than that.   

Perhaps some future Chief Executive, hopefully President Barack Obama, will come to realize that these policies are inconsistent with our basic law and tradition and disavow them and take any remaining weapons away from the C.I.A., a civilian organization endowed simply to gather and coordinate foreign intelligence and that clearly has no business using weapons in the field.   Otherwise, we will apparently just simply continue our long slow slide into a government of men and not of laws.   We need to have leaders who not only try to physically protect America and Americans, but who also truly understand and appreciate the precious ideas and principles of our American heritage that must be protected if our beloved country is to remain a bulwark of liberty and freedom and shining light to the world.   Some principles are just as important as the people they are designed to protect.   Like the notion of a government of laws and not of men.